Citation Nr: 0529496
Decision Date: 11/03/05 Archive Date: 11/14/05
DOCKET NO. 04-21 575 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to a rating higher than 20 percent for a
right knee disorder with degenerative joint disease (DJD).
2. Entitlement to a rating higher than 20 percent for a left
knee disorder with DJD.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Hancock, Counsel
INTRODUCTION
The veteran had active service from May 1965 to August 1976,
and from January 1980 to February 1988.
This case comes before the Board of Veterans' Appeals (Board)
from a July 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in North Little
Rock, Arkansas. In that decision, in pertinent part, the RO
denied entitlement to evaluations in excess of 10 percent for
the veteran's service-connected right and left knee
disabilities. The RO subsequently, in March 2004, increased
the disability evaluations assigned for each knee to 20
percent. Pursuant to AB v. Brown, 6 Vet. App. 35 (1993), the
veteran is presumed to be seeking the maximum benefit allowed
by law. Consequently, even though the RO increased each of
the veteran's service-connected ratings for his knees to 20
percent, the claims remain in controversy because less than
the maximum benefit has been awarded.
In July 2005, a hearing before the undersigned Veterans Law
Judge was held at the RO. A transcript of this hearing is of
record.
For the reasons explained below, the claims on appeal are
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC. VA will notify the veteran if further
action is required on his part.
REMAND
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107. Regulations
implementing the VCAA are published at 38 C.F.R §§ 3.102,
3.156(a), 3.159 and 3.326(a). The VCAA and implementing
regulations apply in the instant case. In Quartuccio v.
Principi, 16 Vet. App. 183 (2002), the United States Court of
Appeals for Veterans Claims (Court) provided guidance
regarding the notice requirements mandated by the VCAA. All
pertinent notice requirements of the VCAA and implementing
regulations appear to be met. VCAA notice was provided to
the veteran most recently in February 2005, prior to the
certification of the claims to the Board.
The veteran was most recently afforded a VA orthopedic
examination in February 2005. Review of the examination
report shows that the veteran had internal derangement and
degenerative joint disease of both of his knees. He
complained of bilateral knee pain. Examination of both knees
revealed neither instability nor tenderness. The diagnoses
were internal derangement of the right knee with degenerative
change and internal derangement of the left knee with
degenerative joint disease and previous medial meniscectomy.
Review of the report of a September 2004 VA orthopedic
examination shows that examination of the veteran's knees
revealed no evidence of instability. Also, no pain was
elicited in the course of the examination. Bilateral knee
internal derangement was diagnosed.
In the course of his July 2005 hearing before the
undersigned, the veteran testified that he suffered from
bilateral knee instability once or twice a week (see page 4
of hearing transcript (transcript)). He added that he had
daily pain in both knees, worse in his left knee (see pages 5
and 6 of transcript). The veteran further testified that he
was currently being treated by a private physician, Dr.
Griffin (see pages 3, 7, and 8 of transcript), and that this
physician had informed him that the next step concerning his
knees would be to replace them (see page 4 of transcript).
The veteran also complained of daily bilateral knee swelling
(see page 10 of transcript). The Board is of the opinion
that the veteran's hearing testimony, when compared to
findings and complaints documented as part of the above-
mentioned September 2004 and February 2005 VA examinations,
seems to imply that his bilateral knee symptoms had increased
in severity. Accordingly, while acknowledging that the
veteran was recently afforded a VA examination in February
2005, based upon his July 2005 hearing testimony, a VA
examination is needed to determine the current severity of
the service-connected right and left disabilities.
The Board also notes that review of the veteran's claims file
shows that the most recent treatment records associated with
treatment afforded him by Dr. Griffin are dated in May 2004.
As he has informed the undersigned in July 2005 that he had
been treated by this physician after this time (see page 3 of
transcript), a remand is necessary to ensure that all
treatment records are up-to-date.
The development to be requested as part of this remand is
particularly necessary in light of VA General Counsel
opinions indicating that a veteran who has arthritis and
instability of the knee may, in certain circumstances, be
rated separately under Diagnostic Codes 5003 and 5257, and
that if a veteran has a disability rating under Diagnostic
Code 5257 for instability of the knee, and there is also X-
ray evidence of arthritis, a separate rating for arthritis
could also be based on painful motion under 38 C.F.R. § 4.59.
See VAOPGCPREC 9-98; VAOPGCPREC 23-97. Moreover, VA's
General Counsel recently indicated that a veteran could
receive separate ratings under Diagnostic Codes 5260 (leg,
limitation of flexion) and Diagnostic Code 5261 (leg,
limitation of extension) for disability of the same joint.
VAOPGCPREC 9-2004.
Accordingly, this case is REMANDED for the following
development and consideration:
1. Obtain copies of any existing private
medical records from Dr. Griffin relating
to the veteran's knees since May 2004.
Any records obtained should be associated
with the other evidence in the claims
file.
2. After any additional evidence has
been obtained, arrange for the veteran to
undergo VA orthopedic examinations of
both knees. The claims file must be made
available to the VA examiner, and the
examiner should review the file prior to
the examination and indicate that he or
she has done so. All appropriate tests
and studies, including X-rays and range
of motion studies of both knees, reported
in degrees, should be accomplished. All
findings should be made available to the
primary physician prior to the completion
of his or her report, and all clinical
findings should be reported in detail.
The examiner should also render specific
findings as to whether, during the
examination, there is objective evidence
of pain on motion, weakness, excess
fatigability, and/or incoordination
associated with the service-connected
right and left knee disabilities. If
pain on motion is observed, the examiner
should indicate the point at which pain
begins. In addition, after considering
the veteran's documented medical history
and assertions, the examining physician
should indicate whether, and to what
extent, the veteran experiences likely
functional loss due to pain and/or any of
the other symptoms noted above during
flare-ups and/or with repeated use; to
the extent possible, the examiner should
express any such additional functional
loss in terms of additional degrees of
limited motion.
The examiner should identify all
impairments affecting each knee. With
respect to each knee, examiner should
specifically indicate whether arthritis
is present, and whether there is
recurrent subluxation or lateral
instability of the knee (and, if so,
whether such is best characterized as
"slight," "moderate," or "severe").
The examiner should also indicate
whether, in either knee, there is
ankylosis, dislocation or removal of
cartilage, impairment of the tibia or
fibula, or genu recurvatum.
3. Ensure that the requested actions
have been accomplished (to the extent
possible) in compliance with this REMAND.
If any ordered action is determined to
have not been undertaken or to have been
taken in a deficient manner, take
appropriate corrective action. See
Stegall v. West, 11 Vet. App. 268 (1998).
4. Then, review any additional evidence
and readjudicate the appellate issues,
under all appropriate statutory and
regulatory provisions and legal theories,
including the opinions of VA's General
Counsel discussed above. If the benefits
sought on appeal remain denied, the
veteran should be provided with a
supplemental statement of the case
(SSOC).
When this development has been completed, and if the benefits
sought are not granted, the case should be returned to the
Board for further appellate consideration, after compliance
with appropriate appellate procedures. No action by the
veteran is required until he receives further notice. The
Board intimates no opinion, either legal or factual, as to
the ultimate disposition warranted in this case, pending
completion of the requested development.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C.
§§ 5109B, 7112).
_________________________________________________
N.R. ROBIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).